Exploring the FOI black hole
By Doug Fisher
Call it the black hole of various federal and state freedom of information
laws.
The language usually is something like this section of
South Carolina's law: "Matter specifically exempted from disclosure
by statute or law."
Sometimes, like the federal law, the language is more complicated: "This
section does not apply to matters that are specifically exempted from
disclosure by statute … provided that such statute (A) requires
that the matters be withheld from the public in such a manner as to leave
no discretion on the issue, or (B) establishes particular criteria for
withholding or refers to particular types of matters to be withheld."
Whether a few words or many, these sections open black
holes in open-records laws that can suck in a lot of mischief.
But what is the potential damage to the public's right
to know? And what surprises are likely to await those who
otherwise might assume that records vital to understanding how government
works are open?
Last year, the Associated Press began answering some of
those questions with an extensive study of state secrecy
laws passed after the September 11 attacks. It found 616
laws that restricted access and 284 that loosened it.
But it does not appear anyone has truly plumbed the depths
of such black holes until now. A senior honors student
at the University of South Carolina, Mary Beck, has catalogued
the extent to which that state has sprinkled records exemptions
throughout its laws. (Full disclosure: I was her thesis
adviser.) Her findings in a small state should make press
associations and news organizations throughout the country consider their
own "black hole" inventories.
Beck found more than 170 exemptions buried throughout the
state laws. In addition more than 50 exemptions were not
listed in state law, but promulgated by agencies under
the state code of regulations.
Many these deal with privacy concerns for individuals served
by state regulated businesses or professions, such as patient
records for health care facilities including abortion clinics,
tattoo parlor client information, and details about campers
at programs for the mentally retarded. Others deal with
keeping proprietary business information private.
Some have been well publicized and remain controversial,
including many provisions that can keep the public from
knowing complaints have been made about licensed professionals.
Some might raise eyebrows. Among them:
- Information the Agriculture Department
collects in investigating trade practices that might hinder
marketing of soybeans, sweet potatoes or pork.
- Workers' compensation statistics
given to the state Labor Department to allow it to assess
hazards and schedule inspections.
- Supporting statements detailing
how a cable TV company figures out how much it owes a
city or town in a franchise fee.
- Reports to the state fire marshal
detailing what went wrong when there is an explosion
or fire at an LP gas facility. The reports are off-limits while the fire marshal
investigates, but it's not clear they can be opened once the investigation
is complete.
- Statistical information about
medical malpractice suits. The intent appears to be to
keep individual patient information private, but the exemption could be interpreted
to keep all statistical information off-limits.
- All records the Judicial Merit
Selection Committee uses to recommend judge candidates,
except what comes out at under oath at public hearings.
- Details of gifts to state officials
or employees by lobbyists if it would compromise economic
development secrecy. The governor, statewide constitutional officers, the House
speaker or the president pro tem of the Senate must approve such cases, and
they eventually can release the records, if they decide there no longer is
any danger to the project.
Some of these date to the 1960s, before the state's current
freedom of information law was enacted, and some, like
the cable TV fee records, are as recent as last year.
Unlike the AP, Beck found few exemptions that appeared
to pass in reaction to the September 11 attacks.
The South Carolina Freedom of Information Act specifically
says "it is vital in a democratic society that public business be
performed in an open and public manner," and legislators direct judges
to interpret the law in favor of openness. As Beck notes, "The
danger of putting so many exemptions outside the FOIA
is that they will be interpreted more broadly than the
framers of the open records law intended."
The S.C. Press Association intends to put Beck's work
on its Web site as a resource for journalists around
that state. Perhaps journalists – or a journalism student – in
your state can compile a similar list that your press
association also can share. You might be surprised at
what you find.
(The AP stories can be found at: www.ap.org/FOI/foi_031306a.html
and www.ap.org/FOI/foi_031306c.html.)
